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Another One Bites the Dust: NLRBs Employer Restriction to Monitor Employees’ Productivity Struck Down

08 May

Update Applicable to:Effective date
All employersSee Details Below

What happened?

The U.S. Court of Appeals for the D.C. Circuit recently shot down the National Labor Relations Board’s (NLRB) attempt to prohibit employers from monitoring employees using video surveillance.

What are the details?


  • In October 2022, the NLRB expressed concerns over employers’ growing use of monitoring technologies like key loggers and cameras to enforce quotas and directives. The NLRB stated that such use of technology could breach the National Labor Relations Act (NLRA), regardless of whether it was specifically used to monitor union activities (See NLRB Memo).

The case

  • The case involved two unfair labor practices.
  • The first charge was against the employer for violating the NLRA. A manager had texted a truck driver, instructing him not to cover the installed cameras in the truck.
  • The second charge accused the employer of violating the NLRA by issuing a written warning to an employee for making inappropriate comments about a coworker’s sexual orientation.
  • The Administrative Law Judge initially ruled in favor of Stern Produce on both charges in the unfair labor practices case.
  • The NLRB, however, overturned the Administrative Law Judge’s decision upon review.
  • The employer appealed the NLRB’s decision to the D.C. Circuit Court.
  • The court issued a strongly worded opinion, reversing the NLRB’s decision and ruling in favor of the employer.

The Court

  • The court stated that the employer had informed truck drivers about camera monitoring and privacy expectations in company vehicles and had instructed them not to disable the cameras. The employer also upheld a policy against discrimination based on sexual orientation. The D.C. Circuit ruled that the employer’s enforcement of these policies did not violate the NLRA, as there was no proof of intent to disrupt employees’ union activities.
  • For a more detailed breakdown of the case.

Business Considerations

  • The opinion of Stern Produce Company Inc v. NLRB is good news for employers who use technology to monitor productivity. It also reinforces an employer’s right to protect employees from discrimination based on their sexual orientation.
  • Employers should communicate any monitoring policies to employees and inform them about the use of technologies like cameras and the expectations regarding privacy.
  • Employers should maintain and enforce policies that prohibit discrimination, including based on sexual orientation.
  • Employers should ensure company policies do not violate the NLRA. There should be no intent to interfere with employees’ rights to engage in union activities.
  • Employers should seek legal advice when implementing or enforcing policies that could potentially infringe on employees’ rights under the NLRA.

Source References


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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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